BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110016652 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests approval of the Transfer Education Benefits (TEB) transferability option under the Post-9/11 GI Bill to her nephew.

2.  She states she was under the impression that she could transfer her 
Post-9/11 GI Bill benefits to her nephew until she attempted to do so and was informed that he is not an eligible dependent.  She states that her niece and nephew have been in her care since the death of her sister.  The State of Illinois granted her custody of them in 2002 and they are currently listed in the Defense Enrollment Eligibility Reporting System (DEERS) as her dependents.  As a result, she believes she should be allowed to transfer her educational benefits to her nephew.  She states that a representative of the U.S. Army Human Resources Command (HRC) informed her that neither her niece nor her nephew qualifies for TEB because they are not biological, adopted, or stepchildren.  However, this individual could not provide her with the regulation which she was citing.  Both are listed as "wards" in the TEB website; therefore, the option of transferring benefits to them is not available and the TEB website has "not applicable (N/A)" in the "transfer" column.  The applicant contends that her dependents qualify as eligible transferees in accordance with Public Law 110-252.

3.  The applicant provides:

* three pages of email correspondence with an HRC representative
* a DD Form 1172 (Application for Uniformed Services Identification Card – DEERS Enrollment)
* an online screen printout from the TEB website

CONSIDERATION OF EVIDENCE:

1.  The applicant has served as a member of the Regular Army and the U.S. Army Reserve for over 29 years and currently holds the rank/grade of major/O-4 in the Active Guard Reserve Program.

2.  Section II (Dependent Information) of the applicant's DD Form 1172 shows a female born in April 1990 and a male born in October 1991 are listed as her dependents since 16 May 2005.  Items 35 and 63 show their relationship to the applicant as "Ward."

3.  The applicant's screen printout from the TEB website shows the same two persons are listed as her family members and indicates their relationship to the applicant as "Ward."  The "Transfer" column of this screen shows their transfer status as "N/A."

4.  The email correspondence exchanged between the applicant and representative of HRC during the period 18 to 20 July 2011 shows the applicant:

* attempted to transfer eligibility of her education benefits to her dependents, but the TEB system would not allow her to do so
* attempted to resolve the matter by contacting the DEERS custodian without success
* sought assistance from her career manager at HRC
* was informed that in order to be eligible for TEB the recipients needed to be either her biological or adopted children

5.  During the processing of this case, an advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, dated 27 June 2011.  The advisory official stated the applicant is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program.  A Soldier may only transfer to eligible dependents (legally adopted children, stepchildren, or legitimate children, but not Wards of State) per Title 38, part I, chapter 1, section 101, paragraph 4a.  The TEB policies are based on requirements established by law.  The Army does not have the legal authority to grant an exception to policy that would allow those who do not have eligible dependents to transfer Post-9/11 GI Bill benefits.  The Office of the Deputy Chief of Staff, G-1, recommended disapproval of the applicant's request and further stated the opinion is based on the legal authority mentioned above and outlined in Public Law 110-252, subsection 3319(b).  Specific Congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status.

6.  On 14 February 2012, a copy of the advisory opinion was provided to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

7.  On 22 June 2009, Department of Defense (DOD) guidance established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, provided certain criteria are met.

8.  On 10 July 2009, the Army released the Post 9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits and detailed guidance on the administration of the program.

9.  Public Law 110-252, subsection 3319(c) (Eligible Dependents) provides an individual approved to transfer an entitlement to educational assistance under this section may transfer the individual’s entitlement as follows:

	a.  to the individual’s spouse,

	b.  to one or more of the individual’s children, or

	c.  to a combination of the individuals referred to in paragraphs a and b above.

10.  Title 38, U.S. Code, part I, chapter 1, subsection 101, states the term "child" means a person who is unmarried and:

	a.  who is under 18 years of age;

	b.  who, before attaining 18 years of age, became permanently incapable of self-support;

	c.  who, after attaining 18 years of age and until completion of education or training (but not after attaining 23 years of age), is pursuing a course of instruction at an approved educational institution; and

	d.  who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran’s household or was a member at the time of the veteran’s death, or an illegitimate child but, as to the alleged father, only if acknowledged in writing signed by him, or if he has been judicially ordered to contribute to the child’s support or has been, before his death, judicially decreed to be the father of such child, or if he is otherwise shown by evidence satisfactory to the Secretary to be the father of such child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected to allow her an exception to policy to transfer her education benefits under the TEB provision of the Post-9/11 GI Bill to her nephew.

2.  She attests she has cared for and provided for her niece and nephew as if they were her biological children for several years and contends that she should be allowed to transfer her educational benefits to them under the provisions of Public Law 110-252 because there are no laws or policies which prohibit such transfer.

3.  Although she has provided care for her nephew for several years, the applicant has chosen not to legally adopt her niece and/or nephew.  The evidence of record shows her nephew is under her care as a "Ward of State."

4.  Public Law 110-252, subsection 3319(c), provides that entitlement to educational assistance under this section may only be transferred to the individual’s spouse and/or one or more of the individual’s children.

5.  Title 38, U.S. Code, part I, chapter 1, subsection 101, states, in part, in order to be legally considered a "child," the person must be a legitimate child, a legally-adopted child, or a stepchild.

6.  Unfortunately, the available evidence shows the applicant's niece and nephew do not meet the statutory eligibility criteria.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  __X__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110016652



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ABCMR Record of Proceedings (cont)                                         AR20110016652



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